By Mohammad Altaf Hussain Ahangar
Hindu law, it has been said, has ‘the oldest pedigree of any known system of jurisprudence’. With due deference to the past doctors of this great system, I borrow their terminology to state my perception of the majority-minority question in India.
This image is representational (source: internet)
I view India as a Sanyuktparivar – a huge ‘coparcenary’ and an enormous ‘undivided family’. The various religious, linguistic, ideological and cultural communities and groups of India are the ‘coparceners’ and the ‘members’ in this great ‘joint family’. Among these are the Hindus including the Brahmosamajis and all other sects, Sunni and Shia’a Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, Jews, Tamils, Malayalis, Bengalis, Punjabis, South-Indians, Parsis, Jews, Tamils, Malayalis, Bengalis, Punjabis, South-Indians, North-Indians, tribals, and all others having a distinct identity of any kind.
By virtue of janmswatvavada – doctrine of ‘right by birth’ – all these communities and groups equally belong to the country, as they are all children of the Motherland born and brought up on its sacred soil.
None among them is smaller, greater, inferior or superior than any other member of the family. Whatever might have been the origin and distant history of these communities and groups, by virtue of the doctrine of ‘factum valet’ today all of them are Indian first and Indian last, in an equal measure.
By virtue of samudayik swatvavada – doctrine of ‘collective ownership’ – the whole of India, inclusive of its entire heritage and resources, belongs to all these communities and groups collectively; none of them can claim an exclusive or preferential right to an iota of national heritage and resources.
Article 30(1) of the Indian constitution guarantees to religious and linguistic minorities of the right to establish and administer educational institutions according to their choice and preference. To make the protection purposeful, a prohibition is imposed under Article 30(2) against discrimination by the state in matters of financial aid to educational institutions on the ground of their being under the management of a religious or linguistic minority. These guarantees are part of the pledge to secure justice, liberty and equality, which is solemnly expressed in the preamble to the constitution. The object is to protect minorities against discrimination and enable them to preserve their linguistic and cultural characteristics; educational institutions being one of the most effective methods of preserving the same.
What is, however, amazing is that the constitution nowhere defines the term ‘minority’, nor does it identify the minority groups or prescribe a definite test for identifying the same. It has been left for the courts to ascertain whether a group claiming protection is one identifiable by the characteristics of religion or language and is numerically non-dominant. The courts have, however, come out with various kinds of ruling, not answering the problem in a uniform way.
Consequently the term, minority under Article 30 is still not clear in its meaning and import.
Ordinarily, ‘minority’ means a group of individuals smaller in number as against the numerically dominant group in a population within a defined area. Such a group possesses stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population, and it wishes to preserve them.
Sociologists consider ‘minority’ to be a group which may be subjected to discrimination and unequal treatment irrespective of its numerical size. Judicially it has been held that, ‘minority’, means a “community which is numerically less than fifty per cent” of the total population. Legally, ‘minority’ is a non-dominant collectivity distinguishable from the majority of the population in respect of religion, language or both.
What is the geographical unit with reference to which a portion of the population could be calculated and weighed as a minority against the total population? In several cases, this question has come up before the courts. In Ramani Kanta Bose case, the Assam High Court seemed to be of the view that minority status could be determined according to the areas or locality concerned. In the Kerala Education Bill case, it was argued that in order to constitute a minority the persons in question must numerically be in a minority in the particular region in which the educational institution involved was situated. Rejecting the argument, the Supreme Court observed:
A little reflection will at once show that this is not a satisfactory test. Where is the line to be drawn and which is the unit which will have to be taken… Are we to take as our unit a district, or a sub-division or a taluk or a town or its suburbs or a municipality or its wards?
The test suggested for determination of minority as suggested by the state was not satisfactory as, firstly, word ‘region’ itself was not precisely definable and, secondly, even if a ‘region’ was taken as a unit the test would break down in a marginal situation… The Bill before us extends to the whole of the state of Kerala and consequently the minority must be determined by reference to the entire population of that state. By this test Christians, Muslims and Anglo-Indians will certainly be minorities in the state of Kerala.
From this observation it is evident that when an Act of a state legislature extends to the whole of the state, the minority must be determined with reference to the entire population of the state. And in such a situation a community, linguistic or religious, which is numerically less than 50% of the entire state population may be regarded as a minority for the purpose of the constitution.
This decision was later followed in D.A.V. College Jullundher, D.A.V. College Bhatinda, A.M. Patroni, Pannalal and K.O.Varkey. By analogy, in case there is any central legislation pertaining to education, which now falls in the Concurrent List, the minority is to be ascertained with reference to the entire population of the country.
Where there is a state law a ‘political minority’ – such as the Sikhs – could form a numerical majority in a state. Similarly, the ‘political majority’ of the country, the Hindus, could form a religious minority in a particular state.
This image is representational (source: internet)
In our opinion the test devised by the courts is very unsatisfactory. The minority problem is in fact a British creation. The Constitution-framers had in mind politically recognised minorities such as Muslims, Sikhs, Christians, Parsis and Anglo-Indians at the time of incorporation of Article 30 in the Constitution. The purpose was to concede to those communities certain rights in secular areas such as education, language, and culture.
The explanation given by Dr Ambedkar in the constituent Assembly regarding replacement of the word ‘minority’ by the words ‘any section’ in Article 29 leads to the conclusion that Article 30(1) was intended to include the above well-known minorities based on religion or language. However, the failure of the courts to recognise minorities at the national or locality level, and their stress on the state level, has given rise to many anomalous situations.
The worst among these anomalous situations pertains to the state of Jammu and Kashmir. A look at the 1981 Census report reveals the following break-up of Jammu and Kashmir population:
a) Whole State: 59,87,387
Other religions 44
Religion not stated 8
b) Jammu: 9,43,395
Other religions 7
c) Ladakh: 68,380
Other religions 5
Muslims constitute majority in the state as a whole. The Hindus in Jammu and the Buddhists in Ladakh are, locally, in majority.
Suppose the state government passes an enactment whereby it seeks to impose control over the management of educational institutions in the state. Taking shelter of Article 30, as interpreted by the judiciary the Hindus of Jammu and the Buddhists of Ladakh would be exempted from its scope irrespective of the place where they may have established and are administering educational institutions. On the contrary, if Muslims establish an institution in Ladakh or Jammu, they would be subjected to that enactment, on the basis that the institution belongs to the ‘majority’ at the state level.
Since the courts have already descended from the national-level minorities to state-level minorities, some day minorities may be ascertained at the district level as well. We are, however, not in a position to reconcile with the contention of the state of Kerala in the Kerala Education Bill case that the local area should be decisive factor for determining a minority. Such a trend, V.P.Bharatiya rightly contends is likely to result in the Tamilians in Karol Bagh in Delhi being denied the protection of their linguistic school because they are in majority in the area, while in Daryaganj they can claim it because of their large population in that area.
Acceptance of local area for determining a minority may lead to eclipse of the constitutional guarantee, as the state may limit the operation of a statute to areas where particular religious or linguistic groups are in a majority.
Sects within a community viewed as ‘minorities’
Explanation II under Article 25(2)(b) of the constitution says that reference to Hindus in the Article includes, under that Article, that also to persons professing Sikh, Jain or Buddhist religion. Can, then, persons belonging to these three religions, bracketted with the Hindus by the constitution, be grouped with them so as to form the religious majority at the national-level? If so, the right guaranteed to religious minorities under Article 30 will not be available to these communities. The judiciary has, however, so much widened the scope of the ‘religious minority’ that hardly any religious sect or denomination, howsoever insignificant numerically and doctrinally, can be denied the right to establish and administer educational institutions of its own choice.
In Arya Samaj Education Trust the Delhi High Court, while rejecting the argument that Arya Samaj was a ‘minority based on religion, observed:
The word ‘minority’ used in the expression ‘minorities based on religion’ used in Article 30(1) connotes only those religious minorities which had claimed political rights separate from those of the Hindus prior to the constitution, such as the Muslims and the Sikhs. The Christians did not seem to have claimed separate rights, but they were nevertheless a distinct minority based on religion which at no stage was regarded as a part of Hinduism. Because of the political origin of the sense in which the world ‘minority’ was used in India, it was never applied to a part or a section of Hindus…During the debate of the constitutent Assembly also it is only this aspect of the minority problem which was discussed. No section or class of Hindus was ever referred to as a minority. In Article 30(1), therefore, the world ‘minority’ cannot apply to a class or a section of Hindus.
This ruling was followed in D.A.V college Batinda and Gandhi H.U.M. Vidyalaya. However, in Arya Pratindhi Sabha Patna High Court treated Arya Samajis is Bihar as a religious minority distinct from the Hindus. In another Patna case the Brahmo Samaj was declared a religious minority separate from Hinduism. The Delhi judgement had described also the Jains as a minority. By analogy, the Satsangis Swaya-mariyathais, Radhaswamis, Virasbaivas and Lingayats may also be called religious minorities. All the4se rulings go against the description of thehse communities in Article 25(2)(b) of the constitution, and the codefied Hindu law of 1955-56.
Christians are well known nation-level minority. At the state level, in W.Proost the Suprem Court, on the basis of “less thhan 50% population of the state” rule, recognised Christians as a whole as a religious minority in the state of Bihar.
Minorities and State at the Indian Law
Judicial liberalism in declaring smaller religious sects and denominations as minorities has, however, been extended also to the Christians, Diocese of Church of South India, and the Society of the Brothers of the Sacred Heart of Jesus, to name a few, have been recognised by the courts as religious ‘minorities’ in their own right.
The judiciary in its zeal of allowing protection to educational institutions under Article 30 has so liberally interpreted the expression “religious minorities” that hardly among Hindus at present in India we can say there is any “religious majority”. Fifteen years ago the Delhi High court, in Arya Samaj Education Trust case, had said:
Just imagine the various classes and sections of the Hindus being regarded as minorities for the purpose of Aritcle 30 (1). There are so many classes and sections among the Hindus with varieties of religious opinions that the Hindus will be divided into numerous sections and classes. If each of them were to constitute a minority under Article 30 (1), the Hindus would not remain a majority at all but would consist of numerous religious minorities.
The apprehension seems to have come true.
Levels of linguistic minority
Like ‘religious minority’, the constitution does not define also ‘linguistic minority’, leaving it to the courts to ascertain whether a group in question is distinguishable from the rest of the population by characteristics making it a linguistic minority. And, the courts have liberally interpreted also the expression “linguistic minority.
In D.A.V. college Jullundher the Arya Samaj claimed protection under Ariticle 30(1) on the ground of being a Hindi-speaking linguistic minority in Punjab. The state of Punjab contested the contention on the ground that many Hindus in the state spoke Punjabi as their mother-tongue.
Dismissing the argument, the Supreme Court observed:
Arya Samajis had a distinct script, namely Devnagri, which was distinct from that of the Sikhs who formed the majority in the state, which entitled them to avail of the protection …A linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that the language should also have a distinct script for those who speak it to be a linguistic minority.
The conclusion which can be drawn from the above judgement is that the only condition which is required to be satisfied by a non-dominant group to be recognised as a linguistic minority is that it has a separate language spoken by its members – the language need not have distinct script. This was also the judicial opinion in D.A.V. College, Bhatinda and Panna Lal.
By analogy of these cases, the Buddists of Ladakh and the Hindus of Jammu are linguistic minorities in all areas of the state of Jammu and Kashmir, including the regions where they are in a majority. The Muslims of Kashmir on the other hand, would everywhere be treated as a ‘linguistic majority’, though their population in some areas of the state is less than 5%. It is perhaps the fact that the Muslims are a religious and linguistic majority in the state that has dissuaded them from establishing educational institutions in Ladakh and Jammu regions.
In that case, the protection under Article 30(1) to Muslim institutions would not be constitutionally allowable.
Kashmiri, though the language of the state-level majority, is still struggling for its due recognition in Jammu and Kashmir. Its introduction in schools and imparting curricular instructions in this language are in an embryonic stage. Comparatively, the Ladakhi and Dogri languages are in a better position. In a nutshell, the Muslim Kashmiris have suffered in Jammu and Kashmir on account of being a ‘religious and linguistic majority’.
From the above discussion what seems evident is that the limiting of protection under Article 30 to the politico-religious minorities obtaining at the time of the commencement of the constitution has been, by and large, unacceptable to the judiciary. Instead, the courts have come out with criterion of, ‘state-level minorities’ based on religion and language.
What is very disappointing is that the criterion lacks practical viability and tends to distort the objects behind Article 30 of the Constitution. This judicial trend has resulted in the emergence of Kashmiri Muslims, Punjabi Sikhs and Nagaland and Christians as state-level religious majorities while all of them are national-level religious minorities. Also the concept of ‘religious minorities’ has been unduly widened. As a result of this, a
Constitutional provision meant for the real religious and linguistic minorities has become a weapon for protecting educational interest of the national-level religious and linguistic majority.
It is suggested that if a community is a ‘minority’ in the historical or national context, and its claim is based on religion or language, it must be defined and ascertained in terms of the population of the whole country, irrespective of its being in numerical majority in any particular state. Where a group is not a ‘minority’ in the national context but can still be defined as a ‘minority’, it may be ascertained with reference to the population of the district where the educational institution in question is situated. The application of this formula would be realistic and the protection under Article 30 would in broader spectrum go to the minorities envisaged by the framers of the Constitution.
Author is Prof Dr Mohd Altaf Hussain Ahangar Ex Professor – Faculty of Law, Sultan Sharif Ali Islamic University, Brunei Darussalam- Faculty of Law, International Islamic University Malaysia Ex Reader and Lecturer, Law Faculty, University of Kashmir.
This article was presented by me at National Seminar on Minorities in 1990. Later on, in 1991 it was published as a chapter in a book titled Minorities and State at the Indian Law.